Wednesday, October 12, 2011
From the LSN professional announcements. Notice our fellow blogger Robin Effron is one of the commentators.
IBL Symposium: Globalization of the United States Litigation Model
Friday, October 21, 9:00 am - 5:00 pm, Subotnick Center, 250 Joralemon Street, Brooklyn
CO-SPONSORS: The Dennis J. Block Center for the Study of International Business Law was established by Brooklyn Law School to provide students with the opportunity to study and shape international business law and policy, drawing upon its faculty's depth of scholarship, experience, and strong international and business law curriculum. It sponsors outstanding symposia that bring together leading practitioners, government officials, and legal scholars from around the world to discuss topics including securities regulation, trade, banking, and intellectual property law.
For over three decades, the Brooklyn Journal of International Law has demonstrated a commitment to publishing substantive, scholarly articles, making it one of the top-ranked international journals in the nation. Published three times a year, the journal features articles on public and private international law by leading authors from academia, government, and private practice.
ABOUT THE SYMPOSIUM: Globalization has led to greater connectivity, interdependence, and economic integration. As a result, this has exposed some plaintiffs and defendants as global participants to different litigation systems.
Given the importance of the United States in the process of globalization and the extent to which the United States relies on litigation in various contexts, its litigation system is viewed by some as a model-one to be either imitated or avoided. For example, the United States is generally more receptive to litigation as a means of protecting injured investors or as a tool of corporate governance, as in the use of collective actions through class litigation and derivative lawsuits. In addition, entrepreneurial lawyers are an important part of the litigation model.
The symposium brings together scholars to discuss how the U.S. model has or has not influenced the development of other litigation systems. Three sessions will focus on procedural issues, securities litigation and enforcement, and derivative litigation.
8:30am Registration and Continental Breakfast
9:00am Welcoming Remarks
Michael A. Gerber, Interim Dean and Professor of Law, Brooklyn Law School
Arthur Pinto, Co-Director, Dennis J. Block Center for the Study of International Business Law; Professor of Law, Brooklyn Law School
9:30am Procedural Issues
Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
Sergio J. Campos, Associate Professor of Law, University of Miami School of Law
Antonio Gidi, Assistant Professor of Law, The University of Houston Law Center
Commentator: Robin Effron, Associate Professor of Law, Brooklyn Law School
11:15am Securities Litigation and Enforcement
Eugenio J. Cardenas, Doctor of the Science of Law (JSD) Candidate, Stanford Law School
Poonam Puri, Associate Professor of Law, Osgoode Hall Law School York University
Manning G. Warren III, H. Edward Harter Chair of Commercial Law, Brandeis School of Law, University of Louisville
Commentator: James Park, Associate Professor of Law, Brooklyn Law School
2:00pm Derivative Litigation
Arad Reisberg, Reader in Corporate and Financial Law & Vice Dean (Research), Director, UCL Centre for Commercial Law, Faculty of Laws, University College London
Martin Gelter, Associate Professor of Law, Fordham University School of Law
Daniel W. Puchniak, Assistant Professor, Faculty of Law, National University of Singapore
Commentator: Minor Myers Assistant Professor of Law, Brooklyn Law School
Monday, October 10, 2011
Whenever colleagues at one of my former institutions would (tongue in cheek) argue about which required law school course was most important, one of my fellow Civ Pro professors would invariably pronounce Civil Procedure as “the foundation of all law.”
Those of us who appreciated the spirit, if not the letter, of this sentiment are brought down a peg or two by Justice John Paul Stevens’ recently-published Five Chiefs: A Supreme Court Memoir. In his brief history of the Chief Justices of the Supreme Court and the best-known opinions issued during the term of each, Justice Stevens makes no mention of a single civil procedure case – not even Erie.
Reading this 248-page small book is a pleasant way to spend an evening. I felt that I was sitting on the porch drinking lemonade with the justice. The book is organized chronologically, but some of his recollections seem a bit random. Discussions of death penalty jurisprudence bump up against a lengthy criticism of the redecorating of the justices’ conference room. Nonetheless, Justice Stevens’ graciousness, integrity, and love of the rule of law illuminate the volume.
So, back to my topic: no civil procedure nuggets. No discussion of why he couldn’t find some way to join Justice Brennan (or even Justice O’Connor) in Asahi and felt the need to strike out on his own. (He did mention that in law practice in Chicago, he represented “a surprisingly large number of entrepreneurs who were distributors of products manufactured by others – coin-operated washing machines, auto parts, calculating equipment, magazines, automobiles, and soft drinks,” but this did not lead to any discussion of stream-of-commerce.) No mention of Twombly and my favorite line of his dissent: “If Conley’s ‘no set of facts’ language is to be interred, let it not be without a eulogy.” No mention of Iqbal, even though he does discuss why he believes sovereign immunity has no place in a democracy. No mention of Shady Grove and that all-important portion of his concurrence with regard to Section 2072(b).
Good read, but don’t bother if all you wanted was an inside scoop on some leading civil procedure cases.
Mark Spottswood (Florida State University College of Law) has posted Evidence-Based Litigation Reform to SSRN.
Over the past several centuries, medical practice has undergone a striking revolution. Slowly but surely, practices based on ancient authorities and untested theories of disease, like purging and blood-letting, have given way to more effective therapies developed through systematic experimental testing, like antibiotics. This revolution may still be in progress, but few can deny that it has improved the quality of health care services. This article considers what lessons lawyers can learn from this evidence-based revolution in medicine, and whether a similar approach to designing rules of legal procedure and evidence could succeed.
Complex systems, like the body and the litigation environment, resist intuitive understanding. If one wishes to maximize a particular result in such environments, one must systematically measure the effects of various interventions on that result, whether it be the health of a patient or the accuracy of case-resolutions. For this reason, we should place little confidence in the accuracy of results generated by existing litigation procedures, because we have never conducted systematic investigations to identify which rules generate the most accurate outcomes. The costs of this ignorance, in terms of unjust outcomes in civil and criminal litigation, may be very high even if we cannot currently perceive them.
Unfortunately, measuring the accuracy of adjudication is much harder than keeping track of morbidity or mortality. If we wish to develop our own evidence-based litigation movement, we will need to design investigative approaches that can measure and compare the accuracy of the many different types of outcomes that can resolve disputes. Towards this end, I sketch one possible accuracy-measurement protocol in this Article, while acknowledging that it would be costly to implement. I also offer some commentary on the relevance of this discussion for current theorizing and practice, with a particular emphasis on the danger of making procedural design choices based on existing forms of empirical evidence and the risks of crafting national rules without drawing on a record of comparative rule experience.
Sunday, October 9, 2011
Forthcoming in the Kentucky Law Journal and posted on SSRN, Raymond Brescia has completed an empirical study of Iqbal's effect that, unlike past studies, attempts to focus solely on motions to dismiss going to the specificity of the pleadings.
The abstract for "The Iqbal Effect: The Impact of New Pleadings Standards in Employment and Housing Discrimination Litigation" follows.
Abstract: In May 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, a case brought by an immigrant of Pakistani descent caught up in the worldwide investigation that followed the horrific attacks of September 11, 2001. In that decision, the Court extended the “plausibility test” first introduced two years earlier, in Bell Atlantic v. Twombly, to all civil pleadings in federal court. That test requires that, in order to satisfy federal pleading requirements, a complaint must allege a plausible set of facts. But what is plausible in a given case may be in the eye of the beholder.
In the two years since the Court reached its decision in Iqbal, that opinion has been cited roughly 25,000 times. The empirical analysis contained in this study attempts to gauge the impact of Iqbal on civil rights cases, specifically cases involving allegations of employment and/or housing discrimination. While several other studies have attempted to answer similar questions, to date, no study has analyzed this impact with reference solely to motions based on the specificity of the pleadings: which is, of course, the central issue in Twombly and Iqbal. In addition, other studies looked exclusively at quantitative results, with no assessment of the manner in which the plausibility standard was being applied by the lower courts. This empirical study attempts to fill that gap in the empirical research.
This study identified over 1850 reported decisions on motions to dismiss in employment and housing discrimination cases filed in federal district court covering the years prior to and after the Court’s decision in Twombly. From this group of cases, a smaller sub-set, totaling 634 cases, was identified by excluding those decisions—included in previous studies—that bore no relation to the issue of the specificity of the pleadings. Furthermore, despite this winnowing process, the sample size for this study was still considerably larger than those analyzed in previous studies.
This detailed study yielded the following results. Surprisingly, the dismissal rate in this class of cases during a set time-period immediately prior to the Twombly decision was actually slightly higher than the dismissal rate of decisions issued in the time period between issuance of the Twombly and Iqbal decisions, but then the rate increases considerably after Iqbal. The dismissal rates for all cases pre-Twombly was 61%; between Twombly and Iqbal, it was 56%; but then after Iqbal, it was 72%, an 18% increase from the pre-Twombly period analyzed.
In addition, even more troubling, plaintiffs were far more likely after Iqbal than either before Twombly or immediately thereafter to face a motion to dismiss challenging the sufficiency of the pleadings in the cases analyzed. Indeed, decisions on such motions were generated only 12 times in the first quarter of 2004 (the first quarter analyzed in this study), but then 61 times in the third quarter of 2010 (the last full quarter analyzed): a greater than 500% increase.
Moreover, when it comes to the substance of these decisions, something else appears to be happening. Despite the increased dismissal rate following Iqbal, oddly, in a class of cases analyzed for this study, courts rarely invoked the plausibility standard in the same manner it was utilized by the Court in Twombly and Iqbal; that is, courts rarely found that dismissal was warranted if there was an arguably more plausible, and entirely legal, basis for the challenged conduct. Finally, and similarly, judges rarely, if ever, appear to invoke their own “experience and common sense,” as urged to by the Court, when ruling on motions to dismiss in these cases.
These outcomes yield three conclusions. First, district courts are using the Iqbal precedent, though not necessarily Twombly, to dismiss employment and housing discrimination cases at an accelerated rate. Second, although courts may be invoking the Twombly/Iqbal plausibility standard in assessing the sufficiency of the pleadings in employment and housing discrimination cases, they are certainly not relying on or utilizing the plausibility standard as articulated in these two precedents. This suggests that the subjective elements of the plausibility standard may be infecting these outcomes. That is, if district court judges are dismissing cases at a higher rate post-Iqbal, yet are not relying on the guidance the Court has given such lower courts in how to deploy the plausibility standard, it would seem that such courts may feel emboldened to dismiss cases that might have survived such a motion had that motion been decided pre-Iqbal. Finally, regardless of whether there is a dramatic Twombly or Iqbal effect on outcomes, motions to dismiss challenging the sufficiency of the pleadings are much more common since Iqbal, which means that even if some plaintiffs are defeating such motions, it still comes at a price: it increases transactions costs in these cases, and may, as a result, have a chilling effect on lawyers contemplating bringing them in the first place.